Ashok Kumar Singh vs State of U.P.

R. K. Mahajan, J.—These petition: involve common questions of fact and law therefore, both are being disposed of by; common judgment. This order will dispose of Writ Petition No. 43838 of 199'' (challenging impugned order of transfer and Writ Petition No. 6251 of 1998 (challenging impugned order of suspension).

This is interesting case in itself. Petitioner''s grievance is that impugned transfer has been made under the influence of Energy Minister, Government of U.P. Sri Naresh Agarwal but on previous occasions, there are letters on record of Miss. Mayawati and one Rizvi M.L.A. who recommended the case of petitioner for remaining at a particular station, he himself exercised influence of political leaders and thus he is himself exponent of taking shelter of politicians and now he is making grievance of their interference. In democratic system some time necessity may arise but then one should not make the same a basis to challenge the transfer orders.

According to petitioner, he joined the services of U.P. State Electricity Board as an Assistant Engineer in the year 1971 and was promoted as an Executive Engineer in the year 1988. While serving as Executive Engineer in Electricity Distribution Division Hamirpur the petitioner was transferred from Hamirpur to Gorakhpur vide an order dated 121997 (Annexure 2 to the first writ petition). Thereafter he was transferred from Gorakhpur to Orai. He joined at Orai on 30897. Then again by an order dated 21111997 (Annexure 1 to the first writ petition) he was transferred from Orai to Obra. Hence the petitioner filed the first writ petition challenging the impugned order of transfer dated 21111997, alleging that he was frequently transferred within a short span of time from places to places at the instance of the Minister of Energy, Government of U.P. Sri Naresh Agarwal. The impugned order of transfer was stayed by this Court vide an order dated 511998 (Annexure 5 to the IInd writ petition).

Further according to petitioner he was placed under suspension by impugned order dated 1221998 hence he has filed second writ petition alleging that the impugned order of suspension is illegal, improper and against the principles of natural justice and has been made at the direction of the Minister of Energy, Government of U.P. Sri Naresh Agarwal. As such both these petitions have come up for consideration before this Court. The main reliefs sought by the petitioner are that the impugned orders of transfer and suspension be quashed, petitioner be paid his salary and no interference be made in the functioning of petitioner as Executive Engineer Orai.

In short the grievance of the petitioner is that he has been punished for having dared to disobey the instructions of Energy Minister in not recalling the revised assessed bill of an Industry, namely, M/s. Garima Fellow Alloys, owner of which was relation of Sri Naresh Agarwal, Energy Ministery, Government of U.P. The petitioner has alleged that while posted as Executive Engineer, Electricity Distribution Division, Orai he made thorough enquiry in respect of the losses suffered by the U.P. State Electricity Board on one particular feeder line which provided electricity to Hindustan Lever Ltd., M/s. Begepro Food and Feeds and M/s. Garima Ferro Alloys and the investigation so undertaken by him revealed that M/s. Garima Ferro Alloys was engaged in theft of electricity and the amount of bills paid by the said Industry was not commensurate with the electricity supplied. It is further alleged that above mentioned three industries were being supplied electricity and the individual requirement of Hindustan Lever Ltd. was 2400 KVA, M/s. Vegepro Food and Feeds was 1200 KVA and M/s. Garima Ferro Alloys was 6000 KVA but the consumption which was being shown by the said three industries was between 6 to 7 KWH by Hindustan Lever Ltd., M/s. Garima Ferro Alloys showed the consumption of 4 to 5 lac units and thus the Hindustan Lever Ltd. which had the power consumption capacity of 2400 KVA was consuming electricity of 6 to 7 lac per month whereas M/s. Garima Ferro Alloys having capacity of 6000 KVA was showing consumption of 4 to 5 lacs units per month only. It is also alleged that after enquiry petitioner assessed and raised the bills of M/s. Garima Ferro Alloys to 14, 51, 079 units and the assessed demand was of Rs, 42, 28, 940, 13 (Annexures 4A, 4B and 4C to the first writ petition).

The petitioner had alleged that this raising of bills of M/s. Garima Ferro Alloys caused annoyance and displeasure to Sri Naresh Agarwal, the Energy Minister who is relation of Sri Mukesh Agarwal and Praveen Agarwal, the Directors of M/s. Garima Ferro Alloys. The petitioner has further alleged that he was made to appear before the Energy Minister Sri Naresh Agarwal when he visited the factory premises, the Rimjhim Ispat at Bharwa Sumerpur, Distt. Hamirpur while going to Chitrakoot on 161197. In nut shell the grievance of the petitioner is that since he could not change or revise the bills of aforesaid Industry as desired by the Energy Minister hence the impugned orders of transfer and suspension have been passed against him. The petitioner has also alleged that he has been victimised to wreak vengeance so much so that the suspension order amounts to clear defiance of the order passed by this Court in Writ No. 43838 of 1997. It may be pointed out that in these writ petitions an order was passed by Lucknow Bench to dispose of the representation of petitioner regarding his transfer by a reasoned order. It has also been alleged that after suspension order the petitioner was attached to Obra which is illegal and arbitrary. The petitioner has gone to the extent that suspension order has been passed as the Minister felt that how could he dare to file writ petition against his transfer order.

The stand of the respondents in counteraffidavit filed in both the writ petitions is more or less same which we need not mention in verbatim. Only the substance of reply will be mentioned. The respondents case is that the petitioner when posted at Hamirpur was found involved in helping electricity theft and a news to that effect was published in News Paper Dainik Jagaran. He used to leave headquarter without prior permission of his superior officer. A complaint to this effect against the petitioner was received from Principal Secretary (Power) and on the ground of the said complaint the petitioner was transferred from Hamirpur and was attached to Chief Zonal Engineer, Gorakhpur. there is a letter of 121997 of Dr. Ammar Rizvi, M.L.A. on whose recommendations petitioner''s transfer was stayed up to 30497 (relevant copy is attached with the counter affidavit). It is also relevant to mention that (vide para 16 of the counteraffidavit) on the recommendation of ExChief Minister Ms. Mayawati he was transferred from Executive Engineer (attach) Chief Zonal Engineer Gorakhpur to Executive Engineer Electricity Distribution Division Orai vide B.O. No. 110 dated 22897. The relevant letter has been placed on record. It is case of respondents that petitioner has been transferred from Electricity Distribution Division Orai to Obra Thermal and Hydel Project on account of his poor reputation and his activities being against the public interest on 211197 which is subjectmatter of challenge.

The allegations regarding excess bills are replied in para 27 of the counteraffidavit in detail. The respondent''s Counsel''s plea is that under the Electricity Act and Regulations the remedy is only by way of appeal and the Executive Engineer has no power to revise or change once the bills are issued. It is also relevant to mention, that Sri R. B. Purohit, Executive Engineer, Electricity Distribution Division Hamirpur whose statement is attached with the counteraffidavit, has stated that on the visit of Energy Minister to Hamirpur on his way to Chitrakoot no such instructions/discussions were held in his presence as stated by petitioner regarding the change or revision of the bills. It may be mentioned that the Minister has not filed any reply.

Now coming over to the allegations regarding suspension, it may be mentioned that various allegations have been levelled in the impugned order of suspension against the petitioner including the absence from duty without proper application for leave, entering into agreements illegally and without completing due formalities, amending the bills without any authority and thereby causing loss of revenue to the Government etc. The allegations are still to be enquired into.

Sri Kushalkant learned Counsel for petitioner submitted that the transfer has been done at the instance of Energy Minister Sri Naresh Agarwal as petitioner did not oblige his relations who are owners of the factory referred above regarding revision of bills. He further submitted that petitioner was transferred frequently within a very short span of time therefore, impugned order of transfer is liable to be quashed. He also submitted that the Energy Minister Sri Naresh Agarwal has not denied the allegations and his case is being pleaded by the Superintending Engineers Counsel which is not proper for him to do. He also submitted that petitioner may be transferred to Varanasi as his mother and wife remain ill there.

Sri Mehrotra learned Counsel for the respondents pointed out so many paragraphs of the counteraffidavit showing the poor reputation of petitioner, irregularities committed by him at Hamirpur, the political influence exercise by the petitioner and also the chargesheet. He also invited our attention to the letters of Miss. Mayawati and Sri Rizvi. He also submitted that had Sri Agarwal, the Energy Minister been interested in getting the bills changed he could have got an appeal filed before the appropriate authority. He also submitted that the allegations made against Sri Agarwal are vague and it has become a fashion to make such allegations.

Having heard learned Counsel for parties, we are of the view that both the writ petitions lack merit and deserve to be dismissed for the following reasons. It is well settled principle of law that the transfer is a necessary incident of transferable services. It does not vitiate unless it is done against the law, rule or policy or there is no exigency of service. We are satisfied that the petitioner was himself getting his transfer cancelled through political influence and this time he could not succeed therefore, filed writ petition. We are also satisfied that the allegations of mala fide are vague. In the facts and circumstances of the case we do not find any material on record to substantiate the allegations of mala fide nor to record a clear cut finding that the impugned orders were passed at the instance of Sri Naresh Agarwal, Energy Minister, Government of U.P. specially in view of the documents placed by the department on the record of the case. It is easy to make allegations of mala fide to take a chance for getting the things done but difficult to prove.

In E. P. Rayappav v. State of Tamil Nadu, AIR 1974 SC 555, their Lordships of Supreme Court observed as under:

"Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved and the very seriousness of such allegations demands proof of a high order of credibility......."

Considering the facts and circumstances of instant case we are of the considered opinion that we don''t find any ground for quashing the impugned orders of transfer and suspension. The charges levelled against the petitioner in the order of suspension require probe. Accordingly we direct the respondents to appoint aa Enquiry Officer immediately, ir not already appointed and to complete the enquiry preferably with in six months from the date of production of certified copy of this order before the authority concerned subject to active cooperation of the petitioner.

With these directions both the writ petitions fail and are therefore, dismissed. It is made clear that any observation made in this judgment will not prejudice the enquiry in any manner whatsoever except the direction to complete the enquiry within six months as observed above. W. P. dismissed.